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The People v. Michael Hien Artz

February 13, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL HIEN ARTZ, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09-2856)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Artz

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

When he was 18 years old and a senior in high school, defendant Michael Artz invited a 16-year-old classmate (YM) to his house, where YM orally copulated him. Although the prosecution charged defendant in count 1 with forcible oral copulation pursuant to Penal Code section 288a, subdivision (c)(2), for this incident, the jury acquitted defendant of forcible oral copulation, and found instead that he was guilty in count 2 of violating Penal Code section 288a, subdivision (b)(1), non-forcible oral copulation with a person under 18 years of age.*fn1

Defendant took photographs of YM orally copulating him. Several months later, he contacted YM and threatened to post the pictures unless she agreed to have sex with him. For this the jury convicted defendant of contacting or communicating with a minor in violation of section 288.3, subdivision (a) (count 3).

The trial court granted probation for a period of five years following a jail confinement for a period of 270 days. Defendant was required to comply with mandatory registration as a sex offender pursuant to section 290. The trial court also imposed various fines, fees, and assessments.

Defendant argues his equal protection rights were violated because section 288.3 makes it a crime to contact a minor with the intent to commit non-forcible oral copulation, but does not make it a crime to contact a minor with the intent to commit non-forcible unlawful sexual intercourse. The People concede this argument, and we shall accept the concession. The equal protection violation also affects defendant's mandatory sex offender registration requirement for count 2, non-forcible oral copulation with a minor. We shall remand for the trial court to determine whether to exercise its discretion to order registration pursuant to section 290.006.

Defendant argues his equal protection rights were violated because he was convicted of felony non-forcible oral copulation with a minor, but non-forcible sexual intercourse with a minor is a misdemeanor. The People concede and we accept the concession.

Finally, defendant argues the case must be remanded for the trial court to set forth the bases of the fines, fees, and assessments imposed. The People concede and we accept the concession.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2008, defendant, who was 18 years old, invited the 16-year-old victim, YM, to a party at his house. When YM arrived, no one else was there, and YM eventually orally copulated defendant while he took photos. On May 18, 2009, defendant contacted YM on Facebook and told her he would keep her secret that she had a girlfriend if she would orally copulate him again. Defendant contacted YM a couple of days later and wanted to know if she had thought about the deal he had proposed. He continued to text and call YM, threatening to release the pictures he had taken if she did not agree to meet him. YM went to the police.

With the help of police, YM made two pretext phone calls to defendant. YM asked to buy the photos from defendant, but he said he wanted her to do "what we did last time." When YM pressed him to specify exactly what he wanted he said, "Sex." Defendant wanted to drive over right then so YM could "give [him] a little bit in the park" but YM told him she could not leave the house so late at night. He told her she would get plenty of ...


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